The Interest-Divergence Dilemma Between the Tech Companies and the NSA*

The intensity of the semester has precluded me from writing much on the blog over the last few months. But as the term ends and the winter session begins, I hope to post more frequently here. This post marks the beginning of that aspiration.


As philosopher Robin James has insightfully pointed out last week, “privacy is a red herring,” that is, it is not a relevant consideration in the debate over surveillance and government power. Rather, the real issue is the balance between “security and freedom,” as Obama and DNI Director James Clapper repeat ad nauseum the trite pro-surveillance mantra. Balance, according to James, can be considered either as “the average of two extremes” or it “could mean a dynamically-adjusting continuum (the kind of balancing done, for example, by an audio equalizer or an electrical resistor).” She argues that the discussion over balance is about the latter—how to continually fine-tune the precise resting place between security and freedom.

James’ point is well taken. One of yesterday’s major stories seems to confirm the success of neoliberalism in precisely this vein: Eight top tech companies published an open letter to the POTUS, in which they urge him to limit the state’s surveillance activities because the “balance has tipped.” It’s not clear what the balance is, though here is how they describe it in their letter:

The balance in many countries has tipped too far in favor of the state and away from the rights of the individual – rights that are enshrined in our Constitution. This undermines the freedoms we all cherish. It’s time for a change.

Prima facie, the tech companies are concerned about the encroachment upon individual freedoms, such as privacy.  Coincidentally, such “tipping” dovetails with profit losses for these companies, since as customers continue to hear about how these corporations have turned over supposedly private information to the government (sometimes making even more profit in the mix), they may challenge them by shutting down their Facebook, LinkedIn, and Yahoo accounts (which in turn induces further lost revenue from advertisers). They may engage in some other form of resistance (as encouraged through a neoliberal environment—of relocating their money (and potential corporate profits elsewhere), such as by shifting to non-profit tech organizations or open-source browsers, software, etc. whose primary mission is to protect user privacy. As such, the tech companies’ own “balance” of interests–located between complying with government requests and profiting by (falsely) claiming to protect their customers’ privacy for profit–also tips: in favor of the state.

Elsewhere in their (advertising) campaign to reform government surveillance, they suggest five “principles.” This is the first one:

Governments should codify sensible limitations on their ability to compel service providers to disclose user data that balance their need for the data in limited circumstances, users’ reasonable privacy interests, and the impact on trust in the Internet. In addition, governments should limit surveillance to specific, known users for lawful purposes, and should not undertake bulk data collection of Internet communications.

So, the “balance” that the tech companies suggest is a balance between the government’s “need for data,” “users’ reasonably privacy interests” and “impact on trust in the Internet.”

Funny how the “principle” is rather an exercise in pragmatism: The tech companies don’t disagree that the state “needs” private information. They just insist that the state restrict its demands to that information that falls outside of “users’ reasonably privacy interest.” Presumably, “we” would all be okay if the NSA just collected the data of only those who might be terrorists and threatening American security interests.

Still, on this “principle,” I wonder how the US would distinguish between terrorists and reasonable privacy unless they collected everyone’s data. Doesn’t that bring us full circle back to the premise of all-encompassing surveillance?

I would add that, as the tech letter shows, while the language they resort to is the time-honored liberal discourse between security and freedom, in fact the balance they care about is the balance between corporate profits, government power, and customer complacence. It is not necessarily a problem to tip over from freedom to security, as long as government surveillance doesn’t begin to cause unrest among their customers such that they lose their profit machine.

Presumably “being sensible means not undermining “trust in the Internet,” which makes total sense, when your business profits depend on your customers’ trust in the Internet. So the appeal from the tech companies to the USG, in essence, is to continue their collaboration with the corporations to mine and acquire as much data as possible, but to be less obtrusive, less extreme, less confrontational about it. One way to do so, is to re-institute strict controls on which persons are the focus of data collection.

This is the quintessential neoliberal environment: corporations and the government converge to strip the focus away from rights so as to have better control over individuals. But at the moment that corporate profit is threatened, corporations no longer act in complete concert with the state, but rather each “institution” (the government and corporations) battle each other for control over consumers/citizens.

I think there’s a different (or another) red herring, to borrow from James: It is the red herring of “interests.” In other words, the discourse of interests distracts the “public” conversation from naming several realities (i.e. this is what is NOT printed as part of the official record, as in Reuters or the NYT; it doesn’t mean that many of us don’t see it).

1) It distracts us from being able to identify the struggle over the limits of surveillance as being about the limits of corporate power versus the state’s power and not, as its typically articulated, to protect persons/subjects/consumers/citizens.

2) This struggle is better understood as that between corporate interests for profit and (managing its customers’ behaviors for that purpose) v. government interests to acquire all information as a mode of securing control over subjects and companies.

In other words, the struggle between the tech companies and the government is over managing individual actions en masse, and by extension, its dialectical counterpart: consumers’/subjects’ resistance to being managed.

And this battle reflects the red herring of interests: The discourse of “interests” saturates the public conversation, such that privacy is no longer a relevant question. In fact, the prime concern that governs state actions is “its” own interests. This makes more sense if we revert to the assumption that the state’s interest is in its own survival, not that of its subjects/citizens. The corporations have their own interests in mind is obvious, but their interests are profits as extracted through the control/management of consumers’ actions (such as through Google’s and Facebook’s datacollection methods, which in turn are enhanced by targeting personalized ads at each user, which in turn extracts more information about user behavior.

The issue at stake is not about principles, or ethics, or privacy per se. Rather, the real concern—from the perspective of the tech companies is their profits being lost. That is the tipping point that shifts the balance away from profit in the service of overwhelming government desire to know everything that’s going on.  That interest was okay, so long as the public (customers) didn’t know (or didn’t focus so much on) the fact that their information was being handed over in volume by the tech companies. But when that knowledge threatens to drive away their customer base, then the “balance” qua fine-tuning has been lost.

I think James is right when she questions the relevance of privacy: she and I don’t disagree per se. But my emphasis on “interests” emerges by shifting the analytic:  The language of “interest” distracts us from the question of privacy. In part, this is because the language of privacy reflects an old liberal discourse of principles in relation to the limits of state power. But the discourse of neoliberalism concentrates on interests rather than rights or principles per se.

As such, the political framework changes from individual security to question of “what’s in my interest?” That’s why the common articulation of “disinterest” takes on so much resonance: But if I’m not doing anything wrong, then why should I care?”

The discourse of “interests” has begun to hegemonize the shape of public concerns. Because the language of interests is so commonplace, very few raised an eyebrow when the state appropriates the same language to explain its actions. For example, the US military announced this past weekend that it will no longer communicate information about Guantanamo detainees who are on hunger strike.

Officials have determined that it is no longer in their interest to publicly disclose the information, said Navy Cmdr. John Filostrat, a spokesman for the military’s Joint Task Force Guantanamo.

Filostrat has reported that is more important to worry about the welfare of GiTMO guards (sympathy for whom had to have been enhanced by 60 Minutes’ report inside Camp Delta, which consisted of prisoners yelling, and reports of feces being flung at the guards, among other atrocities), and that of the detainees rather than reporting these strikes.

As the Washington Post reports, of course, the reports on the detainees’ hunger strikes was itself the barometer of the prison. Thus, the absence of information shuts down journalists and human rights advocates, not to mention the public’s, access to this information. But the reason cites was that it was NO LONGER in the interest of the government.

Since when does the interest of the government become an express–and justifiable–factor in which information is publicly reported? It is hard to imagine the state making this the basis of its defense in an earlier era. Arguably, this has been the overwhelming concern for the decade since September 12, 2001, but government policies have always been articulated as having the “interests” of the public in mind: i.e., national security.

The convergence of the language (e.g., of interests) that marks corporate motives and state motives illuminates how the force of biopolitics (or ontopolitics, as I write elsewhere—namely the creation of moral monsters in contrast to good citizens) shifts from one group to another. This is not a question that Michel Foucault answers: how does the focus of biopolitics change from epoch to epoch? Why are some groups persecuted in one moment, but not the next, and how does the focus change? In this moment, as the case of surveillance suggests, it is because the state has taken up the language of interests, as the corporations did already, to manage/discipline their subjects. But, the next chess move is that the corporations have taken up the debate of “freedom/security” in order to battle consumers/subjects’ resistance to being managed or controlled, in order to ensure the corporations’ continued existence and profit-making capacity.

*With a nod to the title of the late Prof. Derrick Bell’s article, “Brown v. Board and the Interest-Convergence Dilemma.”


Violence is Not Power: Meditations on Obama’s Second Term

Revised 1/7/12, 3:25 pm.

Pervasive violence is the ever-louder siren of the U.S. state’s impotence. It is the beacon of this nation’s inability to garner respect by adhering to Constitutional principles. At the risk of being obvious, I have in mind principles such as the freedom to dissent; to challenge the state, to be free of undue invasions of privacy; to have a trial framed by charges, evidence, and clear, fair procedures. These are the principles which would—could–challenge the US’s increasing quest for violence as the means of political control at home and abroad. This quest, paradoxically, revitalizes loyalty among its people even as it drains the existential serenity of those elsewhere in the world.

By violence, I include overt violence, such as the kidnapping and rendition of black and brown men to the U.S; the drones directed towards South Asia, East Africa, and the Philippines; the detention and incarceration of men without charges, lawyers, fresh air. Solitary confinement.

By violence, I include psychic violence, such as warrantless wiretapping and surveillance of US citizens, residents and foreigners (sic); the silent spying on mosque-goers, protestors; the deportation of migrants by the millions; the separation of parents from their children by the hundreds of thousands; the fear of arrest by men and women who give money to charities and legal defense funds of groups deemed often ex post terrorist organizations; the deliberate withholding of justice for poor homeowners scammed by mortgage companies.

By violence, I include the existential violence enveloped in the fear that being Muslim, Black, or Latino marks you as a magnet for police attention. As a magnet for kidnapping. A magnet for arrest and endless incarceration without appeal. For drones. Bullets. Deportations. Among other kinds of invasions and violations.

Sociologist Max Weber talks about the state “as the rule of men over men based on the means of legitimate, that is, allegedly legitimately violence of the state.”

All modern states were founded on violence. On conquest and genocide and slavery.  That history was elided, concealed through the abiding fiction of the social contract. The logic of the social contract was that men agreed to give up violence in order to abide by principles of respect and reciprocity. What we call rights and duties. A social contract.  And even that Social Contract is founded on violence. It is a racial contract, one where the rights and duties of certain men were based on the eclipse of the rights of others: African men, women, and children. White women.

But social contracts—despite their origins– can be useful. Like the Constitution, they can make clear what our expectations are of each other.  They can change, evolve, adjust—but their chief basis is the reciprocity of respect and freedom.

This is why there is something so earth-shatteringly irrevocable when a state based on a social contract, on a Constitution such as ours, declares a—continual–emergency by citing the threat of cultural, racial minorities and political minorities—of Muslims qua terrorists. Of Black men qua drug dealers. Of Latinos qua undocumented migrants. Of all who are political dissidents or whistleblowers who publicize the nefarious actions of elites.

What is it that propels people to endorse their government’s shift from representing them to overseeing them like an abusive parent? Since when do Americans seek comfort in a parent who oversees every move, micromanages every action, punishes every step that it construes as a misstep, who locks their child in the closet for howling in pain? Since when do we endorse political leaders who embrace beatings and torture as implements of security?

The ingenuity of the transition from political representation to state-incurred violence is that it is always—always—done with an array of equipment that makes that violence seem technical, impersonal, clinical.  This is why it seems so natural to move from a society where we elect politicians to represent us with constraints–to one where we license them to expand their powers immeasurably while correspondingly narrowing ours.

As the formidable Miz Arendt point out:

Violence—as distinct from power, force or strength, always needs implements…the revolution of technology, a revolution in tool-making, was especially marked in warfare.

Crises of the Republic, Part I, On Violence

She refers to physical violence and its dependence on technology. Technology such as atomic weapons, missiles, long-range high power assault rifles —and now, drones, cybersurveillance, wireless interception of phone and email communications.  It is technology that becomes increasingly sophisticated in distancing the soldier, the pilot, the government IT specialist, from his targets. Less sophisticated is the distance in distinguishing the target from the bystanders.

Beyond the R & D advances of the US Armed Forces, we can add a range of old-school equipment to that list: torture rooms, undercover CIA operations, prisons in far away places, military bases in Djibouti. These are “necessary” equipment for the purposes of cinching security, to “nip danger in the bud.”

To Arendt’s point, I would add that physical and psychic violence intimately depend upon their own technologies. In particular, three kinds of technologies go hand in hand with violence:

Technologies of law, eager politicians, and enthusiastic citizens.

Technologies of law, as we have witnessed abundantly, include those that instigated the upside-downness of our legal world with categories like pre-emptive policing, (legal and illegal) enemy combatants, and terrorists.

They include the USA PATRIOT Act and the Military Commisions Act of 2006. But we shouldn’t forget the long, continual series of laws that have helped cement and entrench this world of violence.

More recent technologies of violence include the Whistleblower Protection Enhancement Act (which legitimizesafter the fact–John Kiriakou’s criminality perfectly). FISA with its absence of oversight provisions and its latest 5-year renewal, and not 3 as proposed by Sen. Leahy. The NDAA 2013 which, like last year’s version, again legitimates the President’s and US Military’s authority to arrest and indefinitely detain anyone—anyone—that they suspect of terrorism. This year’s version prohibits the closure of Guantanamo Bay’s extra-judicial prison.

Another little remembered technology of violence: H.R. 347, which criminalizes protestors by making it illegal for them to stand near a public building or Secret Service officers with a sign or with “threatening intent.”

But of course, legal technologies of violence aren’t just limited to laws.  They also include US court decisions—and the Supreme Court’s refusal to hear appeals–that criminalize members of charities—or people who give money to them. They include judges’ insistence that they can’t challenge the illegality of drone strikes. Etc. Etc.

Technologies of eager politicians can be found in seemingly liberal upholders of the Constitution. A most recent example would be Senator Dianne Feinstein, who insists that we must give as much information to the NSA as possible in order to catch the terrorists who are in our midst. She simultaneously insists that the NSA knows who to surveil or not surveil, and that its reasons are too dangerous classified for the rest of us to know.

Such technologies of violence can be located in POTUS and his Administration, who demand the authority to assassinate, kill children with drones, arrest and detain, to surveil at whim. Or to collaborate with bankers to ensure that bailout money goes to the perpetrators of fraud, and not its victims.

This technology is replete with smiles, fine suits and coiffures, and the assurance that they are working in the interests and safety of their citizens. It comes with the additional ingredient of insisting that human rights violations in China must be addressed. That the genocidal intentions of Iran and Palestine must be addressed. And condemning the dictatorial powers of the Venezualan and Ecuadorian Presidents. Um, right.

Perhaps the most efficient technology is that of enthusiastic citizens who vote and vote and vote again for politicians who openly assure them that they only want the best for their “constituents.” It is a dangerous technology, this technology of willing self-described liberal citizens who claim to revere the principles of freedom, privacy, and known laws, while insisting that POTUS is constrained by his Congress, his staff, his difficult legacy as the first Black President.

This technology is accompanied by an all-too-easy amnesia (or is it dissociation?).  As Thomas Harrington writes,

…[W]hen a Democrat gets elected to office, it seems that this calculus suddenly changes…[w]hen I confront people whom I know voted for Obama and his party with this desultory and undeniably accurate bill of particulars, they act as if it had little or nothing to do with them and their vote.

In fact, then, the most effective technology of violence under a Democratic Presidency is the denial of facts. It is the willful amnesia that one of “their own,”—a liberal, a community activist, a constitutional law professor, a person of color (and his racially diverse Administration), a cosmopolitan—has taken the lead in violating the sanctity of human beings: through death, destruction of foreign lands, punishing journalists, torturing whistleblowers, kidnapping young men, and killing children. All the while, using secrecy, disposition matrices, surveillance—and–immunity laws—to breed the fear of God into us if we dare dissent.

The second most effective violence is the insistence that destroying and marginalizing one’s own people is better when it comes from a liberal.  As Ethnic Studies Professor Dylan Rodrigues presciently wrote back in 2008—in the aftermath of the Barack Obama’s first victory (the piece is worth reading in its entirety):

To be clear: the political work of liberation from racist state violence—and everything it sanctions and endorses, from premature death to poverty—becomes more complex, contradictory, and difficult now. The dreadful genius of the multiculturalist Obama moment is that it installs a “new” representative figure of the United States that, in turn, opens “new” possibilities for history’s slaves, savages, and colonized to more fully identify with the same nation-building project that requires the neutralization, domestication, and strategic elimination of declared aliens, enemies, and criminals. In this sense, I am less anxious about the future of the “Obama administration” (whose policy blueprint is and will be relatively unsurprising) than I am about the speed and effectiveness with which it has rallied the sentimentality and political investment (often in terms of actual dollar contributions and voluntary labor) of the purported U.S. “Left.

As we witness the nomination and selective framing of Drone collateral death denier and Torture endorser John Brennan by the POTUS for the Director of the CIA–can there be any doubt of how apt Prof. Rodrigues’ words are?

The state’s struggle is not one for political power (defined as that which represents the flourishing of its people)—but for control—to decide the dividing line between flourishing and emaciation, between success and immiseration, between bodily sanctity and bodily violation and destruction, between political freedom and abject fear.  Between life and death.  That struggle for control is a voracious hunger. It is the hunger to monopolize violence—to insist that violence belongs to the state—as an efficient, effective—and legal means to manage its people.

And yet, this Administration’s most effective legacy is the dissemination of fear. Dissemination of evisceration. Of bodily violations. Of the destruction of countless innocent lives.

Liberals who embraced this second term have enabled the continuation of an empire under multicultural leadership—one which continues, expands, and intensifies the war on people—especially on brown and black and Muslim peoples—through an array of technologies, which are so clean, precise, and beyond refute for so many liberals—those who helped perpetuate this war by re-electing the very people who continued it under the mantle of Freedom and Democracy.

Looking forward, not back.